When and How U.S. Courts Should Cite Foreign Law

Article excerpt

At a recent Ohio State University symposium honoring her fifteen years on the U.S. Supreme Court Justice, Ruth Bader Ginsburg responded to questions submitted by law students. (1) One question asked her about the controversy surrounding courts' citation of foreign law. Justice Ginsburg took a calm view of the matter: "I frankly don't understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law." To demonstrate her point she offered an example:

   And one of the examples that I give of that was a case before
   the Israeli Supreme Court some years ago; it was called The
   Ticking Bomb Case. The police think that a suspect they have
   apprehended knows where and when a bomb is going to go
   off. Can the police use torture to extract that information?
   And in an eloquent decision Aharon Barak then the Chief
   Justice of Israel said, "Torture? Never!" and explains that
   "We could hand our enemy no greater weapon than to come
   to look like that enemy in our disregard for human dignity."
   Now why should I not read that opinion and be affected by its
   tremendous persuasive value? So that's just one example. (2)

She followed her example with a comparison:

   Our neighbor to the north, Canada... is a very interesting
   supreme court, probably cited more widely abroad than the
   U.S. Supreme Court, I think for one reason: You will not be
   listened to if you don't listen to others. I've been asked so
   many times by jurists abroad: "We in our country are inspired
   by model of the U.S. Supreme Court, and we refer to your
   decisions, but you never refer to ours. Don't we have anything
   to contribute?" (3)

Others disagree about the usefulness of foreign law. According to the same New York Times article that reported Justice Ginsburg's comments, Chief Justice Roberts responded to a similar question during his nomination hearings by saying, "If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge." (4) Some members of Congress have been less measured; according to the Congressional Record, Senator Cornyn (R-TX) has expressed concern

   [O]ver a trend that some legal scholars and observers say may
   be developing in our courts--a trend regarding the potential
   influence of foreign governments and foreign courts in the
   application and enforcement of U.S. law. If this trend is real,
   then I fear that, bit by bit, case by case, the American people
   may be slowly losing control over the meaning of our laws and
   of our Constitution. If this trend continues, foreign
   governments may even begin to dictate what our laws and our
   Constitution mean, and what our policies in America should
   be. (5)

And in the popular sphere, the rhetoric is even more heated; apparently responding to Justice Ginsburg's Israeli example, a television commentator noted:

   Well, here's an idea for Justice Ginsburg. Perhaps she would
   like to meet and talk with Saudi Judge Sheikh Kabib al
   Habib, who has again denied to annul [sic] a marriage
   between a 48-year-old man and an eight-year-old girl. Justice,
   I think you should really talk to Judge al-Habib. By the way,
   the child's father arranged that marriage in order to settle
   debts, an interesting custom. Perhaps Justice Ginsburg would
   with like us to bring that custom to the United States. (6)

Justice Ginsburg is right on one big point: there is a lot more heat than light in this small controversy: U.S. courts not only do but often must cite foreign law in circumstances that produce no comment--much less a brouhaha. Unfortunately, both the example Justice Ginsburg gave and the motivation she suggested in these two passages are unrepresentative and misleading. …